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State v. Jessica M. Weissinger, 2013AP218-CR, and State v. Michael R. Luedtke, 2013AP1737-CR, petitions for review granted 10/15/14

Consolidated review of two published court of appeals decisions: State v. Weissinger, 2014 WI App 73 (case activity); and State v. Luedtke, 2014 WI App 79 (case activity)

Issues (composed by On Point)

In light of State v. Dubose, 2005 WI 126, 285 Wis. 2d 143, 699 N.W.2d 582, does the Wisconsin Constitution provide greater due process protection than the federal constitution, such that defendants charged with operating with a detectable amount of a controlled substance in their blood are denied due process under the Wisconsin Constitution when their blood samples are destroyed before the defendants had notice of the charges or test results and thus had no chance to get the blood independently tested?

Does the offense of operating with a detectable amount of controlled substances in the blood violate due process by failing to require the state to prove that the defendant knowingly ingested the controlled substance?

While these cases arose out of charges for operating with a detectable amount of a controlled substance, they will be of undoubted importance far beyond that context because the first issue could arise in any case in which the state fails to preserve physical evidence.

In both cases, the court of appeals said it was bound by Youngblood v. Arizona, 488 U.S. 51 (1988), which says that a defendant’s due process right to the preservation of evidence is violated if the police: 1) fail to preserve evidence that is apparently exculpatory; or 2) act in bad faith by failing to preserve evidence that is potentially exculpatory. 488 U.S. at 57-58. This standard was adopted in Wisconsin by State v. Greenwold181 Wis. 2d 881, 512 N.W.2d 237 (Ct. App. 1994) (Greenwold I), and State v. Greenwold, 189 Wis. 2d 59, 525 N.W.2d 294 (Ct. App. 1994) (Greenwold II). Failure to preserve evidence that is merely potentially useful is not a denial of due process unless the defendant shows bad faith on the part of the police, which requires proof that: 1) the police were aware of the potentially exculpatory value or usefulness of the evidence they failed to preserve; and 2) they acted with official animus or made a conscious effort to suppress exculpatory evidence. Youngblood, 488 U.S. at 58; Greenwold II, 189 Wis. 2d at 69.

Because neither Weissinger (who hadn’t even been charged yet when the evidence was destroyed) or Luedtke (who had been charged when the evidence was destroyed, though he hadn’t yet received the results) showed the evidence was “apparently exculpatory” or claimed bad faith, the court of appeals found no due process violation. But as detailed in our post on the case, in Weissinger a concurring judge agreed the court is bound by Youngblood and Greenwold, but criticized the rule from those cases as setting up “an illusion” by setting “such a high bar, it is virtually impossible to overcome.” (¶29 (Brown, C.J., concurring)). And a dissenting judge suggested that Youngblood, properly understood, doesn’t apply to the kind of inculpatory evidence at issue in this situation—an interesting conclusion, certainly, but tough to maintain given Illinois v. Fisher, 540 U.S. 544 (2004) (per curiam), which rejected arguments that Youngblood was inapplicable where the discarded evidence (like the blood here) is essential to and determinative of the outcome of the case.

As Judge Brown aptly notes, he’s “not alone in [his] distaste for Youngblood. Several courts and commentators have criticized the case, and a number of states have held that their state constitutions require a balancing test instead.[7]” (¶30). Weissinger made no state constitution claim, but Luedtke did (and, notably, the court granted Weissinger’s PFR only as to whether the state constitution grants greater due process protection). As explained in our post on Luedtke, the court of appeals rejected Luedtke’s argument because in Greenwold II, 189 Wis. 2d at 71, the supreme court held that our state constitutional due process protections are equivalent to the federal protections. But Luedtke relied on Dubose, which came after Greenwold II and recognized a broader state constitutional due process right. So we’ll now learn whether that broader right means anything in the context of evidence preservation (or whether it remains standing at all, given the changes in the composition of the court since Dubose).

As to the second issue: Only Luedtke raised this claim in the court of appeals, which rejected it in a conclusory analysis that found no problem with the legislature making § 346.63(1)(am) a strict liability crime. But strict liability crimes are the exception, not the rule, and are appropriate only when employed to safeguard the public from conduct the actor can reasonably be expected to know—indeed has an affirmative responsibility or duty to know—is unlawful, State v. Collova, 79 Wis. 2d 473, 482-484, 255 N.W.2d 581 (1977). Someone who’s impaired can be expected to recognize his ability to drive is affected, but as Luedtke argues, under § 346.63(1)(am) a person who is not impaired faces liability even if he unwittingly ingested a controlled substance and a mere detectable amount is (unbeknownst to him) present in his blood. We’ll see whether the supreme court agrees it’s fundamentally unfair to punishing a driver for what he does not, and could not, know is in his blood.

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